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33 Trends 1 (2001-2002)

handle is hein.journals/trends33 and id is 1 raw text is: Environmental law in t Supreme Court during i October 2000 term BY ROBERT V. PERCIVAL W hile Congress once was the primary agent of change for environmental law, attention has now turned to the courts, which are hearing a host of challenges to environmental regu- lation, as illustrated by the Supreme Court's most recent term. The court decided three major cases involving constitutional challenges to environmental regulation and a nonenvironmental case with impor- tant implications for environmental justice 'claims. Solid WasteAgency of Northern Cook County v. U.S. Army Corps of Engineers In Solid Waste Agency of Northern Cook County v. US. Army Corps of Engineers (SWANCC) the Court considered whether Congress has the cnsti- tutional authority to regulate isolated wetlands used by migratory birds. SWANCC was an outgrowth of the Court's decision in United States v. Lopez, 514 U.S. 549 (1995), which held that an intrastate activ- ity must substantially affect interstate commerce before Congress could regulate it under its com- merce powers. Relying on Lopez, the petitioner in SWANCC argued that Congress could not require it to obtain a federal permit under § 404(a) of the Clean Water Act before it filled an abandoned sand and gravel pit to create a landfill. The Seventh Circuit had upheld application of § 404(a) to the isolated wetland, finding that because it served as habitat for migratory birds, substantial effects on interstate commerce could be inferred from the mil- lions of hunters and -bird watchers Who travel inter- state in pursuit of birds. Deciding SWANCC by the same 5-4 lineup that prevailed in Lopez, the Supreme Court ducked the constitutional issue by interpreting § 404(a) narrow- ly. The Court found that Congress had not clearly indicated its intent to apply § 404(a) to isolated wet- lands visited by migratory birds. To avoid what it described as' significant constitutional and federal- ism questions the Court held that § 404(a)'s juris- dictional predicate - waters of the United States - did not include isolated wetlands where migratory, birds are present. SWANCC thus narrows the reach of the federal Clean Water Act, while leaving important questions unanswered concerning the ultimate effect of Lopez on federal authority to pro- tect the environment. It remains unclear how the substantially affects test is to be applied and whether Congress has lesser constitutional authority Robert V Percival is a projessor of lav, the Robert Stanton Scholar and the director of the Envimronmental Law Program at the University of MarylandSchool of Law to protect the environment from destruction by non- commercial activities than by commercial ones. The Court appears reluctant to address these questions, for it declined to review other decisions narrowly rejecting similar constitutional challenges to the Endangered Species Act. Whitman v. American Trucking Associations While constitutional concerns persuaded the Court in SWANCC to reinterpret the Clean Water Act to narrow its scope, in American Trucking the Court decisively rejected an effort to use constitu- tional concerns as a justification for reinterpreting the Clean Air Act. American Trucking involved challenges to national air quality standards issued by the EPA under the Clean Air Act in 1997. The standards were struck down by the D.C. Circuit not because it found them to be unreasonable, but because it found that Congress had not been specif- ic enough in telling the EPA how to set them. The court's surprising rationale -that the Clean Air Act's directive to provide an adequate margin of safety could unconstitutionally delegate legislative power to the EPA - threatened to invalidate many other federal regulatory schemes. When the EPA appealed the decision to the Supreme Court, opponents of the standards argued that the Court could avoid deciding the nondelega- tion issue by reinterpreting the Clean Air Act to require the EPA to set standards on the basis of cost-benefit analysis. In their view, cost-benefit analysis could provide the intelligible principle the D.C. Circuit had found lacking to constrain the EPA's discretion and avoid nondelegation problems. However, for decades, the D.C. Circuit had inter preted the Clean Air Act not to permit -the EPA to consider costs when it set air quality standards to protect public health. That feature of theAct seemed so clear that even the D.C. Circuit judges who struck down the standards had quickly dis- missed the claim that the EPA should consider costs when setting air quality standards. Undaunted by legal precedent, industry groups assembled a legal Who Who to write Supreme Court briefs assailing the Clean Air Act. General Electric hired Harvard constitutional law expert Laurence Tribe, who authored an impassioned plea for the Court to strike down the Act on nondelega- tion grounds. Dozens of the nation's most eminent economists filed an unusual amicus brief urging the Court to find a way to rewrite the law to require cost-benefit analysis. However, the Court unanimously rejected the (Continued on page 6) 0Printed on recycled paper ptember/October 2001 lume 33, Number 1

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